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Justices eye juror bias in Enron case

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — The Supreme Court yesterday voiced concern about juror bias in the 2006 trial in Houston of former Enron CEO Jeffrey Skilling. But during an hourlong argument in Skilling’s case, the intense news coverage of the Enron scandal was not blamed for the possible prejudice. Instead, the focus was on how the judge handled the screening of potential jurors to ensure a fair trial.

The justices heard arguments in Skilling v. United States, which challenges the vagueness of the “honest services” fraud law under which Skilling was prosecuted. But the Court spent a surprisingly long time debating what had been previously seen as a secondary issue: whether the jury pool was so tainted by bias against Enron that even the most rigorous questioning could not produce a fair trial for Skilling.

When the energy company Enron collapsed in 2001, it had such a deep impact on the economy and people of Houston that the entire city was portrayed as a victim, and the debacle was compared to the September 11, 2001, attacks on New York’s World Trade Center.

As a result, Skilling’s lawyer argued, there should have been an irrebuttable presumption or prejudice and the trial should have been moved out of Houston.

News media organizations, fearing that creating such a presumption would lead judges in the future to shut off pretrial press access to avoid a change of venue, filed a brief in the case. “Declaring a presumption of prejudice arising from pretrial press coverage of a prosecution to be irrebuttable would inevitably undermine the many significant public benefits provided by open access to the criminal justice system,” the brief states.

But during yesterday’s arguments, there seemed to be little appetite for such a presumption, and the press coverage was not the scapegoat that the news media feared. At one point, Justice Ruth Bader Ginsburg remarked that from her reading of the questionnaires filled out by potential jurors in Skilling’s case, “what was remarkable … [was that] there were a lot of people who did not read the newspapers. There were a lot of people who indicated that they really didn’t know anything about this.”

That prompted Skilling’s advocate Sri Srinivasan to say, “Our argument is not — and it hasn’t been at any point in this proceeding — that pretrial publicity caused the passion and prejudice in the community … . This was very much a case in which pretrial publicity was a symptom rather than a cause.”

Srinivasan added, “This was a case in which the passions existed regardless of pretrial publicity.”

On the other side of the case, Deputy Solicitor General Michael Dreeben also seemed to be protective of the press coverage. He accused Skilling’s lawyers of “immense distortion” in their depiction of the intense news coverage of the Skilling case. Dreeben pointed to one potential juror who said she thought Skilling was guilty of some crime, but under questioning she said, “I don’t really watch the news at all; I’m a turtle person.”

Dreeben also said the juror screening conducted by trial judge Sim Lake was sufficient to produce a fair jury, noting that Skilling himself was acquitted on nine counts of insider trading. Several other Enron-related trials also resulted in acquittals, Dreeben added.

In the end, the focus of the Court during the arguments was not on the press but on the judge — and not all of it negative. Justice Stephen Breyer, in particular, did not want the case to result in a rule that would tie the hands of trial judges or make jury screening more lengthy or complicated. Breyer said he was “really worried” about getting into “the business of running the trial court’s trials.”

Court may re-examine pretrial publicity
By Tony Mauro Ex-Enron executive argues 'massive' publicity, 'extraordinary community passion' created 'presumption of juror prejudice.' 10.14.09


Court appears troubled by jury selection in ex-Enron chief's trial

Several justices seem receptive to arguments by Jeffrey Skilling's lawyer that he did not have a fair trial in Houston, Enron's hometown, following the energy company's 2001 collapse. 03.01.10

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